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Protesting Impermissible Bait & Switch of Personnel

Often used loosely in government contracts services parlance, the impermissible “bait and switch” of personnel critical to the performance of the contract is not only prohibited for its potential adverse impact on the contract at issue but also because the practice hurts the long-term integrity of the procurement system as a whole. Therefore, an impermissible “bait and switch” can be an effective ground of protest in situations where specifically defined legal elements are met. While switching key personnel upon contract award is rarely ideal, it does not always constitute an impermissible “bait and switch.” This is partly because the Government Accountability Office (GAO), under its bid protest function, does not review matters concerning contract performance. Furthermore, whether the personnel identified in an offeror’s proposal actually perform on the subsequently awarded contract is generally a matter concerning contract performance. Therefore, the GAO will only review a protest alleging an impermissible bait and switch if the awardee receives an evaluation advantage by proposing personnel that it had no reasonable basis to expect to perform on the contract. In such cases, the awardee is deemed to have made misrepresentations to the government during the acquisition process. The subsequent protest is sustained if the government, in turn, relies on this misrepresentation by favorably evaluating the awardee’s proposal, materially impacting the overall evaluation.

To establish an impermissible “bait and switch” the protestor must establish that (1) the contract awardee knowingly or negligently represented that it would rely on specific personnel critical to the performance of the contract, (2) the awardee could not have a reasonable basis to expect that the proposed personnel would actually perform on the contract, (3) the agency relied on the awardee’s misrepresentation, and (4) the misrepresentation had a material effect on the evaluation. In B-418034; B-418034.2, the GAO sustained one such “bait and switch” protest that sufficiently met all these requirements. In that bid protest matter involving the “bait and switch” on an incumbent program manager, the awardee represented in its proposal that its staffing plan included a mix of incumbent personnel currently performing on the contract. Notably, the incumbent program manager was specifically identified as a key employee who would continue performing on the contract should the awardee receive the contract. The awardee’s proposal also listed the incumbent program manager’s qualifications, experience, and education. The protestor presented a signed declaration from the incumbent program manager stating that the awardee had not contacted him before submitting its proposal. The program manager also represented that while the awardee contacted him after receiving the contract award, they offered him a significantly lower salary for the same position. Additionally, when the program manager contacted the awardee to express his disappointment at the significantly lower salary, the awardee ceased all communications.

The GAO determined that the awardee lacked a reasonable basis for including the program manager as part of its proposal. In the decision, the GAO noted that although it was neither unusual nor improper for awardees to recruit and hire incumbent personnel on a contract, mere speculation that such personnel will choose to work on the follow-on contract was insufficient to form a reasonable basis for inclusion of such personnel as part of the proposed solution. In other words, offerors may not misrepresent the commitment of incumbents by merely anticipating that the incumbents would eventually join their team upon contract award. The GAO also found that the awardee’s proposed inclusion of the Program Manager had a material effect on the evaluation, as the inclusion was used to meet a minimum pass/fail requirement. In sustaining the protest, the GAO was unmoved by the fact that the solicitation did not expressly require offerors to provide commitment letters or other representations from the proposed personnel.

Experienced contractors know better than to propose personnel who are unlikely to perform on the contract. When protesting an award on the basis of an impermissible “bait and switch” contractors should first seek to clarify whether the awardee could have reasonably expected that its proposed personnel would perform on the contract. If not, a protest for an impermissible bait and switch is likely to be sustained, provided the proposed personnel gave the awardee an advantage in the evaluation phase of the solicitation, thereby materially impacting the acquisition.

This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.